Tort - Trespass To Land

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Trespass to Land - Introduction

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This tort protects a possessor of land and buildings against direct interference with them.

The primary issues to be addressed are:

(a) the parties who may sue;

(b) elements that constitute interference; and

(c) instances were continuing interference may give rise to multiple actions between the same parties.

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Who May Sue?

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The Pl in these cases is the de facto possessor of the land; not necessarily the owner, and not even a lawful possessor.

The ratio in Petrie -v- Rostrevor (1898) is that placing goods on land can lead to de facto possession and a right to sue in trespass, though not against the owners or lawful users of the land.

Lawful occupants may sue against the lawful owner of land, where the latter is seen by the law to have exceeded his lawful authority, as in Whelan v. Madigan (1978).

Possession can be established by showing occupation or use, but not where

(a) the Def has a superior lawful right, or
(b) the possession is not sufficiently exclusive.

Thus, hotel guests cannot sue in trespass despite occupying a room, whereas hotel proprietors can, despite not occupying the room.

Holders of legal interests in land such as the holder of an easement can sue in trespass if the Def’s conduct interferes with their interest; generally, this means damaging the property – but not always, e.g. blocking a right of way may be trespass.

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Petrie v. Owners of SS Rostrevor (1898)

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The Pl had sought to commercially exploit an area of foreshore as an oyster bed; he had no legitimate entitlement to it; the Def’s vessel ran aground; the Pl’s oysters were damaged during the freeing of the vessel.

Holmes L.J. held that the Pl had become the de facto possessor, and thus had legal rights over the land against all world except the true owner.

However, no liability was imposed as the Defs were lawful users, with authority derived from the actual owners.

NB: The ratio is that placing goods on land can lead to de facto possession and a right to sue in trespass, though not against the owners or lawful users of the land.

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Whelan v. Madigan (1978)

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Here, the Def landlord was held to have committed trespass against the Pl tenants by damaging property including doors and letterboxes.

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What Constitutes Sufficient Interference?

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The interference must involve direct and intentional or negligent impact on real property, resulting from voluntary conduct for which the Def is responsible.

The following are the three main categories of interference:


1 Entering Property
2 Remaining on Property
3 Contact with Property

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Entering Property

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Any passing of the boundary to real property is trespass unless it occurs pursuant to lawful permission.

The dwelling receives special protection under Art. 40.5.

Property includes the air above and the soil below, but to show trespass, sufficient interest in either of these must be shown – i.e. air interference must interfere with possession of the property, soil interference must be coupled with a particular interest in the subsoil.

Even where an entrant has a right of entry, trespass may occur where the purpose of entry exceeds the terms of the right of entry.

Per Quill: entry for comparison shopping and secret recording may well amount to trespass because of the breach of the right of entry.

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DPP v. McMahon (1987)

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Police officers entered a premises to investigate possible breaches of gaming legislation without the necessary warrant; their arguments regarding the implied invitation of the owner and the power of entry under licensing laws failed because, respectively

(a) the fomer related only to the purchase of food/drink, and
(b) the latter related only to breaches of licensing laws.

Thus, trespass had occurred.

NB: they were held to have trespassed only because their sole reason for entry was unlawful; had there been a mixture of proper and improper reasons for entry, no trespass would have been found.

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Remaining on Property

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An initially lawful entry may become trespass either

(a) by continuing beyond the expiry of the authorisation, or

(b) by the entrant engaging in conduct exceeding the authorisation.

In some cases, the unauthorised conduct renders the entry trespass ab initio (generally for misfeasance rather than non-feasance), although the exact limits of this doctrine are unclear.


Quill wonders whether Webb (1988) fits in with McMahon (1987) to render even their entry unlawful because they brought digging equipment, but no: mixture of proper and improper reasons for entry.

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Webb v. Ireland (1988)

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Pl entered national monument lawfully, but then unlawfully employed metal detectors to find metal; they found a national treasure;

SC held that the digging rendered the Pls trespassers ab initio, and thus they could not have a superior claim than the landowners.

Quill wonders whether this fits in with McMahon to render even their entry unlawful because they brought digging equipment, but no: mixture of proper and improper reasons for entry.

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Contact with Property

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Actual presence on the property is unnecessary to constitute trespass; even personal contact, or contact of a chattel, with the property can constitute trespass, as can the placing of a chattel on property.

Whelan v. Madigan (1978): striking the Pl’s door sufficed for trespass.

Brannigan v. Dublin Corporation (1927): dumping of rubbish was held to amount to trespass.

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Whelan v. Madigan (1978)

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Striking the Pl’s door sufficed for trespass.

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Brannigan v. Dublin Corporation (1927)

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Dumping of rubbish was held to amount to trespass.

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Continuing Trespass

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Where the Def is found to have trespassed and pays damages, but continues to trespass, the damages are (naturally) not seen by the law as constituting a purchase price, thus the continuing trespass is actionable in fresh proceedings.

This has arisen mainly where the trespasser enters land only once, but has left something there which constitutes continuing trespass, e.g. Clarke v. Midland Great Western Railway (1895): the Pl entered the land once, but continued to draw water from a stream on it by means of a mechanism; this constituted continuing trespass.

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Clarke v. Midland Great Western Railway (1895)

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The Pl entered the land once, but continued to draw water from a stream on it by means of a mechanism; this constituted continuing trespass.